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September 21, 2007

Let's Imprison and Deport the Employers, Not the Immigrants

by PG

If physical and psychic stresses should excuse someone from penalties for a crime, but the desire to aid the stressed person while profiting oneself shouldn't, then I don't understand conservatives' enthusiasm for imposing massive penalties on illegal immigrants while punishing employers so lightly and infrequently that hiring undocumented workers continues to make economic sense.

After all, the illegal immigrant frequently is facing many physical and psychic stresses, including deprivation not only for herself but for her dependents as well. Why do we insist on deterring the problem of illegal immigration at the outset, when these people seem to be ready to brave armed Border Guards and Minutemen in order to reach America? They're desperate, and desperate people are difficult to dissuade.

W&L Federalist Bridget Fay/ theobromophile defends Fred Thompson's abortion position as follows:

The insane campaign that wonít die: feminists still present pro-lifers with the false dichotomy of infantalising or imprisoning women. Fred Thompson announced that he wants abortion to be illegal and to imprison doctors. He opined that women who abort during the first three months of pregnancy should not be imprisoned. So-called feminists, predictably, threw a fit.

As the pachyderm stated in a previous post on this subject, the pro-abortion logic on this point is flawed. It turns criminal law on its head: instead of prosecuting based on the mens rea of the perpetrator, the sanctions would be based upon the victim and the identity of the perpetrator. (Well, this is some of the theory behind hate-crime law, which is equally misguided.) Furthermore, a law can rationally penalise one actor and not another: for example, many states impose much higher penalties on drug dealers than on drug users, under the belief that the latter group is victimised by the actions of the former. Finally, the so-called feminists predicate their pro-abortion beliefs upon the pain, discomfort, and emotional difficulty of pregnancy, yet do not permit pro-lifers to use any of those as mitigating factors. (Ericka Anderson has more.)

Fredís position is quite sensible. He does not want to prosecute women who get pregnant and seek illegal abortions; however, his sympathies are limited when women have been pregnant for several months and then decide that they donít want to remain in that situation. It does not patronise women to refuse to imprison them; it only acknowledges that physical and psychic stresses of pregnancy are experienced by the pregnant woman, not her abortion doctor.

Being one of those so-called feminists, I'll apply some of my past arguments on this issue to theobromophile's statement.

1) In general, the criminal law looks at an individual's mens rea. If a specific woman who requested an abortion can show that she was not capable of understanding right and wrong at the time she had the procedure, then certainly she ought not be imprisoned. Nor should she if she had the baby and drowned it, if she similarly couldn't comprehend right and wrong while she was pushing its head underwater. What does the individualized determination of mental health does that have to do with legislation, which is one-size-fits-all? To classify all pregnant women as essentially insane is exceedingly dangerous.

Forget infantilization -- even juveniles face penalties and can be tried as adults. It's the crazy who get the free ride that Thompson and theobromophile believe all pregnant women deserve. And even NGRIs tend to get shuffled to the loony bin; indeed, the looseness of mental health law often allows them to be detained for longer than they necessarily would have been had they been found guilty and sentenced. They also may be forcible medicated.

In contrast, pregnant women are a special kind of crazy that allows them to go free, get pregnant again and re-run the whole cycle if they find another abortionist stupid enough to help them.

2) Certainly a law can penalize one actor more than another. A state could choose to punish only drug dealers and not drug users at all, which is a policy many people have urged. I'm guessing these are people who believe the supply is more important than the demand. Personally, I believe that whether it's drugs, illegal labor, abortions, whatever, as long as there's a demand with money in hand, the market will produce a supply.

Indeed, there's a commerce clause argument for federal legislation that prohibits commerce rather than use, and I've made a similar argument with regard to sex toys, in that the state has a police power to regulate commerce in something, including banning such commerce, but not to ban the product or service itself if freely given.

However, I assume that Thompson would want to imprison doctors who gave free abortions, yet would not punish women who self-aborted (which, if the doctors had any sense of self-interest, is what would happen as all the doctors refused to perform abortions, knowing that their patients have no reason not to narc on them). Thus it does not appear to be either profit or the act of performing the abortion that's penalized. So what will be the crime be -- the performance of an abortion on any person except oneself? That's going to create a massive incentive for abortionists to become helpful assistants to self-abortions; expect a black market in RU-486 to explode.

3) If "pain, discomfort, and emotional difficulty" should be used "as mitigating factors" not merely to decrease the penalty for a crime on an individualized basis, but to declare that it is no crime at all, we are back to my absurd claim at the beginning of this post: illegal immigrants are under a hell of a lot more stress than the average hiring manager at Tyson's Chicken, so we should make the former's crime unpenalized but the latter's ground for heavy penalties. Heck, one of the most reviled groups of illegal immigrants are the women who know they're pregnant and scoot across in time to have an "anchor baby," a kid who has birthright American citizenship. Should those women be excused for breaking our immigration laws because of the emotional difficulty of pregnancy? I'm guess that the get-out-of-jail-free card won't apply for them, even though their impulse seems a lot more laudable than the abortion-seekers; they're trying to make their baby's life better, not end it before birth.

One could argue that proving the hiring manager knew the person was an illegal immigrant is difficult, but if Thompson has any pre-pregnancy exception to his abortion ban -- such as cases of rape and incest -- how do we propose to prove that the abortionist wasn't told by his patient that she had been raped by her cousin but he was the provider for her family and so she couldn't report him to the police without a loss of support to all?

theobromophile's framing of the women who will go scot-free for getting first-trimester abortions under Thompson's plan is very peculiar -- she refers to an interest in penalizing them as "picking on pregnant ladies." Well, no. Telling a pregnant woman that if she wants an abortion, she's doing it herself with a wire hanger, seems to me like picking on pregnant ladies. Telling a no-longer-pregnant woman that if she asked for an abortion knowing that it was against the law, she's going to jail, is picking on post-abortion women. But it's not a surprising rhetorical move: pregnant ladies, sympathetic propagators of the human race; no-longer-pregnant ladies, merely women, and no reason to care about them.

Maybe it's because of all the doctors in my family, but I just can't get over how conservatives want to scapegoat physicians. If my cousin or my little sister (both currently in medical school) have a woman tell them that if they don't help her with an abortion, she'll perform it on herself, I would like for their first reaction to be to find a way for the woman to complete her pregnancy. I assume that if Thompson doesn't want to imprison women for having had abortions, he's not going to advocate having pregnant women detained in state custody until they deliver, so they'll have to convince her that termination is not the right choice.

However, if she is determined to have an abortion, I would want them to help her to have a proper medical abortion that is the least physically traumatic for her and the fetus. I don't want them telling her, "Sorry, I'm not going to jail for you in case you, the nurse or someone else rats me out for doing this." Gratitude is not a dependable guarantor of silence. Should the woman later be convinced by theobromophile that her abortionist actually was an evil manipulator, she's giving up that name without a second thought.

Incidentally, if Fred Thompson's enforcers are reading this, let me say that my cousin would have the "Sorry" response, my little sister might not. She might decide this is her heroic moment to do something for another woman. Oh well, at least if I make myself useful at the trial of one of family members who is a physician, I might be forgiven for going into law...

September 21, 2007 09:45 PM | TrackBack
Comments

A law, if it is to have any force, must have some mechanism by which it may be enforced. Aside from fines, incarceration, or loss of a medical license, I do not know how a law which prohibits abortion would be enforced. (Should all of those not be present, it would merely be a guideline or a resolution.)

The question then becomes thus: should the doctors, the pregnant woman, or both, be penalised?

Now, you could certainly set up a system whereby women who abort are processed through "the system" but are not incarcerated (i.e. mandatory counseling or community service). Given that, currently, some 49% of first-time abortive women will abort again, the counseling option seems rather sensible.

>>>Thus it does not appear to be either profit or the act of performing the abortion that's penalized. So what will be the crime be -- the performance of an abortion on any person except oneself? That's going to create a massive incentive for abortionists to become helpful assistants to self-abortions; expect a black market in RU-486 to explode.

Yes, that would be the point: criminalise the performance of an abortion on anyone but onesself. As for black markets (and nuances around enforcement issues, e.g. the hypothetical woman who claims that her provider-cousin raped her): generally, we understand that all laws cannot be perfectly enforced, and, even then, enforcement mechanisms do not always have a deterrent effect. Should we stand for the status quo: 1.3 million abortions per year - for fear of persecuting doctors?

Obviously, you have a situation in which the two perpetrators are quite sympathetic: physicians and pregnant women. That does not translate into a free reign for both parties acting in concert.

You make a good point about RU-486, which was not around pre-Roe. Some 10% of women who take it will need follow-up care, and 2% of women wil haemorrhage so severely as to need surgery.

>>>In contrast, pregnant women are a special kind of crazy that allows them to go free, get pregnant again and re-run the whole cycle if they find another abortionist stupid enough to help them.

Well, we could always penalise the second abortion.

>>>However, if she is determined to have an abortion, I would want them to help her to have a proper medical abortion that is the least physically traumatic for her and the fetus.

This is where we part ways. I believe that a physician's proper role would be to guard the life and health of the woman and her fetus: I see no reason why the woman would present a superiour claim to that of the fetus. Arguably, abortion also defies medical ethics.

Incidentally, I do believe in penalties for employers who hire illegal immigrants (so that the economic loss from fines will be equal to or greater than any economic benefit gained from illegal hiring practices). Equal-opportunity offender.

Hypothetically, if you were to design pro-life (i.e. anti-abortion) legislation, how would you do it? Would you only punish the pregnant woman? How so: prison, fines, community service, counseling, or some other method? Dual punishment of both the provider and the consumer? Relative punishment of each?

Posted by: theobromophile at September 23, 2007 11:28 PM

I would be fine with a requirement that women who have abortions be required to receive counseling both before and after the abortion, though I would not want to make the counseling impose too much on their resources. For example, the counseling would need to be available on a confidential basis near their place of residence, not only where the abortion takes place.

If you are determined to *penalize* someone as your method of reducing abortions, then it would be more effective to target the woman who gets (or seeks) the abortion. Then their medical providers have an incentive to report them to the authorities, rather than just saying "no" and watching them try the next doc, then the back alley guy, etc. It also removes the economic disparity, where women simply will go out of state (if this is not a federal prohibition) or out of country (if it is nationwide) to get their abortions if someone will pay for them to do so.

Punishing doctors is not a genuine attempt to minimize abortion; it is a way to cobble together a political coalition of the people for whom making abortion illegal is a high priority, plus the people who put less of a priority on it but really don't like the idea of penalizing women and haven't thought much about the doctors who will suffer. (I bet I could survey every Congressman who voted for the partial birth abortion ban, and no more than half would know the penalties imposed on physicians.)

It is the woman who makes herself the physician's patient, not the fetus. You might be able to argue that a woman brought unconscious to an ER hadn't made that choice, so I suppose there you could argue that physicians, given the choice of severely damaging the woman's health or even losing her life, should choose that over saving the fetus.

I see little sense in punishing providers, because that simply forces the practice toward the ones most willing to break the law. If someone must be punished, it ought to be the person(s) responsible for the abortion being sought: the woman and/or the guy who got her pregnant. I'd be happy to make pressuring a woman to get an abortion a crime.

However, I don't think anyone ought to be punished for an abortion itself, because I don't think abortion should be illegal, just discouraged. I have no problem with having social disapproval toward abortion, strong encouragement of alternatives (I'm personally enthusiastic about both contraception and adoption) and requirements for obtaining an abortion.

Re: employers of illegal immigrants, how aggressively should they be sought out, prosecuted, etc.? In my experience, Republicans support these laws being on the books (a la Reagan), but put a low standard on what employers must do (generally no more than accepting whatever the employee says, even if it can't be said in English) and prefer to pour more resources into punishing the illegal immigrants than the employers -- even though illegal immigrants would be disinclined to come to the U.S. if they couldn't get work. Workers are better off in America, laggards are better off in Canada.

Posted by: PG at September 23, 2007 11:58 PM

I'd be happy to make pressuring a woman to get an abortion a crime.

Michigan has done/is doing that. Five women statemen sponsored the Coercive Abortion Prevention Act, which makes it illegal to coerce a woman into getting an abortion.
http://www.legislature.mi.gov/documents/2005-2006/billintroduced/Senate/pdf/2006-SIB-1179.pdf

Oddly, physicians are the ones responsible for enforcing it.

More later - getting late & want to respond properly.

Posted by: theobromophile at September 24, 2007 01:21 AM

The people giving the abortions and their associates are most likely to know that a woman is being coerced into an abortion. So having physicians responsible for reporting the violators of an anti-coercion law makes sense.

Posted by: PG at September 24, 2007 02:50 PM

If you read the text of the statute, it imposes an affirmative duty upon physicians to ensure that the abortion is not coerced. The physician is given a checklist of questions to ask the woman. The statute does not have any specific enforcement mechanism, but it says, "the physician shall...."

Posted by: theobromophile at September 24, 2007 03:29 PM

It is the woman who makes herself the physician's patient, not the fetus.

That's a very lawyerly way of looking at client relationships. Physicians of all stripes have duties to those who are not their patients; sometimes this interferes with patient care. For example, a psychiatrist is bound to report his patient if the patient is a threat to himself or to others. Pharmacists are not supposed to dispense medication to pregnant women that will harm their developing fetuses. (From what I understand from a pharmacist friend, drugs are classed into several different categories. Unless there is dire medical need, pharmacists won't dispense medication that has birth defects as a contraindication.)

By definition, an abortion harms a third party. That's the whole point. As such, it's a little difficult to determine that the physician lacks a duty to the fetus. It is as if a Siamese twin made himself the patient of a physician, then demanded a surgery which would spare him but kill his twin. The physician would not be ethically able to perform the surgery on the grounds that only one of the twins was her patient.

If physicians are not prohibited from performing abortions (pick your method of enforcement), all that will happen is that pregnant women will see doctors, who will willingly perform the surgery, and the abortion rate will not change.

However, I don't think anyone ought to be punished for an abortion itself, because I don't think abortion should be illegal, just discouraged. I have no problem with having social disapproval toward abortion, strong encouragement of alternatives (I'm personally enthusiastic about both contraception and adoption) and requirements for obtaining an abortion.

That which is safe, legal, and seemingly beneficial will never be rare. Why use birth control (or use redundant forms of birth control) or abstain, if there are no moral penalties attached? Why try to reduce abortions if there is really nothing wrong with them? If there is something wrong with them, why have them remain legal (from a philosophical or moral perspective; obviously, the policy arguments about the logistics of making it illegal leave us with the lesser of two evils). We don't allow people to embezzle if it's their first time, if they fell on hard times financially ut otherwise were responsible, or if someone else stole all of their money. Why apply the same theory to abortion?

Posted by: theobromophile at September 24, 2007 03:46 PM

If physicians are not prohibited from performing abortions (pick your method of enforcement), all that will happen is that pregnant women will see doctors, who will willingly perform the surgery, and the abortion rate will not change.

No, if women are prohibited from seeking abortions, the abortion rate will decrease because they will have to fear that anyone will turn them in for the crime. Doctors will inform on them; law enforcement could be pretending to be the back alley abortionists. Many more women will be deterred from abortion if they know the criminal penalties will fall on themselves, than if they know that they will not be penalized at all.

A checklist of questions for physicians to ask women before giving an abortion seems quite reasonable. Informed consent is necessary for any procedure; I had to watch a video and sign multiple forms before I could even get my wisdom teeth pulled. My objections tend to come only when abortion is treated so differently from all other medical procedures, that we end up forcing physicians to use less safe procedures because the one deemed safer by the American College of Obstetricians and Gynecologists has been banned by legislatures with spurious fact-finding.

Pharmacists aren't physicians, and psychiatrists were not required by their own ethics code to report potentially dangerous patients; this became a legal necessity after Tarasoff. I am doubtful that you could get a similar precedent of a psychiatrist failing to protect a fetus from the woman who wants to abort it, if only because Tarasoff and subsequent civil suits were brought by the victims' parents.

Siamese twins share body parts and at no point could have been the patient of a physician without affecting the other twin. They thus make a poor comparison to a woman who had her own fully functioning body before becoming pregnant. But then, in Judith Butler's violinist scenario, I think that the unwilling support system for the violinist could ask for a doctor to separate them and the doctor ethically could comply. It would not be a virtuous act, but it wouldn't be one I'd punish.

I can think something is morally wrong or suboptimal behavior without thinking it should be illegal. Cheating on your wife is morally wrong and divorce/annulment is suboptimal, but I don't want Giuliani in prison. I just disapprove of his personal morals (and clearly we're not punishing him on the second go-round, as he's on his third wife). Now, I'm judging without knowing very much; perhaps there was a very good reason for him to cheat, or at least to divorce. I think the same about abortion: my automatic reaction is disapproval, but I recognize that there can be a very good reason for it, and I don't want people to go to prison for it.

With both divorce and abortions, I think they should be socially disapproved and one ought to be legally required to be counseled as to whether it is the right decision. (And people ought to be legally required to be counseled before marrying in the first place; I'd require counseling before sexual activity, but there's not really a "gatekeeper" there to ensure people have received said counseling.)

As for why one would want to take measures to avoid having an abortion, there are costs aside from legal ones.
Abortion is not free in a purely dollar sense (a second trimester abortion can cost $5000, which is the same amount as 500 months of the Pill for an insured person, 125 months for an uninsured person);
in much of the country, it is not geographically proximate, which imposes transaction and opportunity costs as well;
it is not risk-free (safer than delivery, but riskier than non-pregnancy);
it is socially disapproved even in our most hedonistic media (cf. "Coulda, Shoulda, Woulda," the Sex & the City episode in which one character decides against an abortion and another fears telling her boyfriend that she had one in the past).

Posted by: PG at September 24, 2007 08:40 PM

No, if women are prohibited from seeking abortions, the abortion rate will decrease because they will have to fear that anyone will turn them in for the crime.

But the same doesn't apply to doctors? Why not penalise both, then? Given that the doctor isn't the one with morning sickness, why should he be able to perform a murderous act and get away with it?

You place a higher value upon the sympathies of the physician than on the trials of pregnancy, deeming one to be an excuse for murder and the other to be inexcusable. My thoughts go the other way.

Abortion is not free in a purely dollar sense (a second trimester abortion can cost $5000, which is the same amount as 500 months of the Pill for an insured person, 125 months for an uninsured person);

That's a little disingenuous! Most abortions take place during the first trimester and cost about $300 to $400; Planned Parenthood will subsidise the cost for low-income women. That is about a year of the Pill for a woman on insurance. (Co-pays for the Pill typically run at about $30/month, even with excellent insurance.) Why back up a condom with the Pill when you can abort?

In more than a dollar sense, why be sure to take the Pill every day if you can abort? Why be sure to use redundant methods of birth control? Why bother even considering the fact that sexual intercourse creates human life?

it is not risk-free (safer than delivery, but riskier than non-pregnancy);

Well, yes, abstinence is the safest way to go, physically. The Pill has a variety of side effects (blood clots, a correlation with an increased risk of breast cancer, and many women experience severe depression or mood swings); IUDs certainly are not safe; and tubal ligations have their own risks. Given that the risks can be seen as approximately equivalent to what Americans would perceive to be the risks of an abortion, why choose one over the other?

They thus make a poor comparison to a woman who had her own fully functioning body before becoming pregnant. But then, in Judith Butler's violinist scenario, I think that the unwilling support system for the violinist could ask for a doctor to separate them and the doctor ethically could comply. It would not be a virtuous act, but it wouldn't be one I'd punish.

Not to nitpick, but it's Judith Jarvis Thompson, IIRC.

The problem with that scenario is that her whole thing only applies to women who are raped. The host body is accosted in the middle of the night by friends of the violinist; the former person is seen as entirely passive, indeed, victimised, by the situation. The much more accurate analogy is that the host body hooked up the two bodies, knowing that the violinist could become dependent upon him. In that case, why let them separate, knowing that it is certain death for the innocent, passive party?

(I could go on for quite some time about the absurdities found in JJT's violinist work.)

Posted by: theobromophile at September 25, 2007 01:57 PM

Pharmacists aren't physicians, and psychiatrists were not required by their own ethics code to report potentially dangerous patients; this became a legal necessity after Tarasoff. I am doubtful that you could get a similar precedent of a psychiatrist failing to protect a fetus from the woman who wants to abort it, if only because Tarasoff and subsequent civil suits were brought by the victims' parents.

Agreed with the limited issue of tort liability as opposed to professional ethics. From a legal perspective, though, there is nothing stopping a legislature from imposing such duties by statute instead of by common law, and imposing them on all health care professionals.

Even under your theory, however, why could a father not bring suit against the physician if his wife/girlfriend has an abortion against his will?

From a civil liberties perspective, I very much dislike the idea that human life is only valuable should someone care enough about it to sue over it. Morally, there is no distinction between a psychiatrist who fails to warn a well-loved 16-year-old that her ex-boyfriend is going to kill her and a psychiatrist who fails to warn a homeless bum that said bloodthirsty young male is after him.

Now, libertarians have some problems with an affirmative duty to warn; however, that is fundamentally different from prohibiting someone from directly harming another. The doctor is directly harming the fetus in question, unless he is providing RU-486, at which point, the causal connection is still quite clear. (There are no uses of RU-486 of which I know that are not designed to produce an abortion.) I would much prefer to require physicians to not perform an action that harms a third party than be required to take affirmative steps to protect their safety. Surely, if we do the latter (via tort law, which has not been overruled by statute), we should require the former.

Posted by: theobromophile at September 25, 2007 02:04 PM

theobromophile,

Let's compare the woman-seeking-abortion to the physician-being-asked-to-abort to determine who is more likely to report the other. The doctor who is asked but does not want to perform the abortion has no self-interested motive *not* to report the woman, aside from the loss of her other medical business. The woman who asks him, in contrast, endangers her own ability to get an abortion in the future if she reports him. There's also the issue of relative community standing; physicians are more likely to be people of influence who buy into the existing power structure, including laws against abortion, and thus are more likely to uphold it by reporting lawbreakders. The average woman seeking an abortion, in contrast, is disproportionately likely to be poor, less-educated, unmarried and low status.

Now, these facts make the woman more *sympathetic*, but if you're serious about minimizing the number of abortions, rather than penalizing the less-sympathetic party in an abortion, it makes more sense to penalize the woman. (It makes less sense to penalize both physician and woman, because then they have a mutual compact not to report even if we're running a prisoner's dilemma in which the first to report the other is protected from prosecution.)

All arguments for penalizing the physician and not the woman come down to an attempt to attract the votes of people who are on the fence about whether to prohibit abortion but who would oppose a measure to penalize women. Physicians don't request that women get abortions; women request that physicians perform them. If you see moral guilt and murder in this, it's the woman with whom it originates. If no women asked for abortions, no physicians would perform them.

I used the second-trimester figure because your image of the aborting woman appears to be one of someone who is callous and careless, and such a woman may not bother to get a first-trimester abortion. "(Co-pays for the Pill typically run at about $30/month, even with excellent insurance.)" I don't know where you're getting that figure. The generic Pill is $40 a month without insurance; it's $10 a month with. I can get an affidavit from a local pharmacist if you don't believe me. At $10 a month, that's 30 months of the Pill compared to $300 for the low-end estimate of an abortion's cost. I wasn't aware that PP directly subsidized low-income abortions, though I know there are loans available to women seeking abortions who don't have the cash at hand during their 1st trimester, to avoid the higher-cost and higher-risk 2nd trimester procedure.

If there is no non-legal reason to prefer contraception to abortion, why do you think people do use contraception even in places where abortion is easily available? Millions of people in NYC alone are using contraception, and it can't be because all of them want abortion to be illegal and therefore behave like it is, considering that NY State as a whole had already legalized abortion pre-Roe.

You're right, it's Judith Jarvis Thompson. If the host specifically volunteers to have the needy violinist use her body, then I agree she should not be able to disconnect him if she changes her mind later. (I think a surrogate, for example, should be heavily liable in tort for aborting a pregnancy simply because she had changed her mind, whereas I would not hold her liable for more than what she had been paid if she decided to keep the baby.) But people who abort aren't having sex to volunteer for carrying a fetus. That's more analogous to the claim that women who attend a music recital are thereby volunteering to have the sick violinist attached to them. The choice of one activity does not presuppose the choice of another.

Posted by: PG at September 25, 2007 02:28 PM

Sure, and once you get a fetus to be considered the same under law as a 16-year-old or a homeless bum, we'd already have a law prohibiting abortion through the law against murder. However, because a fetus never has held the status of a person under law, it's not murder. Out of curiosity, would you consider the physician to be obligated to do non-lethal harm to the woman carrying a pregnancy if it would save the fetus?

Posted by: PG at September 25, 2007 02:30 PM

Quickly, because I'm running off...

I was on Tufts Health Plan (the HMO, not the university) and paid $32/month with my insurance for the Pill. That was back in 2001 or 2002.

Now, thing is, I was taking it for a medical reason (attempt to diagnose and treat persistent abdominal pain) - in theory, if anyone were to be covered, it would be me. I was told that I could fight with my insurance company over it, citing medical need, if I so chose.

Furthermore, the cost of the Pill will go to about $40/month for some brands on college campuses:
http://seattlepi.nwsource.com/health/324700_birthcontrol23.html

"Instead of paying $16 a month, she now has to go through health insurance and fork over a $25 co-pay. If she didn't have insurance, it would cost even more."

I suspect that people who use contraception do so because they don't want to become pregnant, finding the situation to be bad and abortion to be a moral wrong. The Guttmacher Institute, however, found that about 1/2 of women who abort were not using any form of birth control, and about 1/4th were using it inconsistently or incorrectly. ]

That's more analogous to the claim that women who attend a music recital are thereby volunteering to have the sick violinist attached to them. The choice of one activity does not presuppose the choice of another.

You are straining logic to its breaking point. No one, to my mind, who has gone to a music recital has EVER become an involuntary organ donor afterwards. Nearly every human on this planet, however, was conceived as a result of sexual intercourse; the ones who were not were conceived in test tubes.

Sex and procreation are inherently linked; in fact, the connection is causal.

I don't think that people who drive drunk are "volunteering" to be personally liable for any damage that they may cause; however, they are morally and legally liable for such damage. People are responsible for reasonably foreseeable consequences and all that.

All arguments for penalizing the physician and not the woman come down to an attempt to attract the votes of people who are on the fence about whether to prohibit abortion but who would oppose a measure to penalize women.

That such an explanation is a justification does not mean it is the only justification. More on that later - time to be a law student.

Posted by: theobromophile at September 25, 2007 04:37 PM

theobromophile,

I suspect that if you were using the Pill for non-contraceptive purposes, it would have to be a very specific brand and dosing of the hormones, so yes, yours may have been more expensive. However, everyone I know who takes the Pill for contraceptive purposes who does not have a medical condition that requires taking a very specific dosing gets it for $10 a month. If you have a medical condition (besides fertility), it makes sense that your medication costs more.

I suspect that people who use contraception do so because they don't want to become pregnant, finding the situation to be bad and abortion to be a moral wrong.

Sure, but many of them seem to be doing so without clamoring for abortion to be made illegal. Like me, they apparently think it's possible to recognize an action as morally wrong without wanting it to be illegal.

Drunk driving is itself illegal regardless of whether it causes any damage whatsoever. If you want to arrest people (including married ones) just for having sex, OK, but I don't think you'll win that vote.

A better analogy would be just plain sober driving, in which one engages knowing that it may cause harm to oneself or to others. However, unless one engages in the activity in a particularly reckless manner (such as doing it drunkenly), there is no criminal liability even if there is an accident, and the tort liability of course would have to be brought by or on behalf of the victims of the accident. There's a causal connection between a pedestrian's tripping off a sidewalk and getting hit by a driver, but the driver's unlikely to go to prison for it.

People are responsible for reasonably foreseeable consequences. However, I don't take your view that abortion is necessarily irresponsible, and that the only possible responsible response to pregnancy is delivery. But that's probably because I don't agree with your apparent notion that the only possible impact abortion could have on someone is legal, and therefore the only possible way to decrease the number of abortions is to make it illegal, though preferably NOT for the person who wants the abortion, but rather for the person performing it. I have to admit that your chain of causation bewilders me, unless you also believe that illegality actually would have little effect on deterring abortion-seeking women, so the threat of prison to the pregnant women wouldn't reduce abortion rates.

Posted by: PG at September 25, 2007 09:15 PM

Regarding the Pill: no, I wasn't taking anything specific - just a normal Pill that cost $32/month. Now, states vary by mandates in health coverage; NY may require that insurance companies treat it as they would a painkiller. Hence the $10 co-pays in your area. Most women, however, pay upwards of $25 or $30/month with insurance.

I do not think that the only possible impact [sic] of abortion is legal; however, we are discussing the legal issue of whether or not women ought to be prosecuted for having abortions, so my arguments were restrained to that area. A lot of the reason why I would not want to prosecute women for abortions is because of my deeply-held belief that the consequences of pregnancy and abortion go far, far beyond the legal sphere; regardless of what the woman does, her life is forever changed once she conceives.

I do think that you can nominally decrease abortions by non-legal (i.e. social) methods, but, again, those decreases would be nominal. Assume, arguendo, that Plan B is not any form of an abortion. The British Medical Journal has found that, even with easy access to Plan B, the abortion rate in the UK has risen since its introduction.
http://www.guardian.co.uk/medicine/story/0,,1873077,00.html

Again: safe, legal, presumptively beneficial: it's never going to be rare. In the age of free condoms, mandatory child support laws, non-discrimination laws, maternity health parity laws, and the like, what else can we do that will reduce the abortion rate from 1.3 million per year to something like, oh, 25,000/year?

You keep skirting the issue of how women get pregnant in the first place. Perhaps the abortion rate is so high because Americans are so unwilling to recognise the basic fact that sex can cause pregnancy. This is not some freakish, isolated event; about 3 million American women, every year, will experience unplanned pregnancies after intercourse. Your analogies, in light of that, make little sense. How is pregnancy like falling off a sidewalk? You continue to impute action or motive to the "harmed" party (the one analogous to the fetus); that is absurd, given that said fetus did not exist (metaphysical considerations aside) when the sex act occurred.

I do not want to imprison women for having sex; I merely think that they ought not to exercise their desire to not be pregnant, after voluntary intercourse, by killing their unborn children. (Fetuses, if you will.) The "right" to not be pregnant is a limited one; one cannot exercise it, for example, by castrating men. I cannot exercise my Second Amendment rights by stealing someone else's gun; the fact that I am unable to afford my own does not mean that I am allowed to bring harm upon others in the exercise of my rights. Likewise, a pregnant woman, if there were an artificial womb, could divest herself of her fetus and let it develop there; however, she cannot cause its imminent death by removing it from her body. She is the one, through her actions, that created the child in her uterus. She's not in any position to say that she can remove it by killing it.

---

As for immoral v. illegal - yes, I do see the distinction and agree with it w/r/t adultery, smoking, dropping out of high school at age 16, etc - there are many things which are legal that I would not do. Yet, there are many things we recognise as immoral that are illegal (as neither one of us is arguing for "moral but illegal," I'll ignore that possibility - if there really is such a thing). Generally, the actions which we consider to be immoral and want to criminalse are those which bring direct (usually physical) harm to another person - those which violate the duty of non-aggression. Thus, we criminalise various forms of robbery, homicide, sexual assault, embezzlement, assault, etc. The more debatable crimes are the "victimless" ones: drug dealing, drug use, prostitution, etc. That which we disapprove of but do not make illegal generally does not violate the duty of non-aggression: there is no direct physical or economic harm. The harms are psychic (such as with adultery) or the economic/physical harm is attenuated (cigarette use).

I will forever believe that abortion best fits within the scope of actions which ought to be criminal. The problem is that it results in the death of a human being (we can debate "personhood" another time); that is not a harm only to oneself (although women suffer as well), or psychic harm. It is clearly the sort of harm that ought to be outlawed by criminal statute. You would not say, "I don't think that fratricide is good, but I don't want to impose my values upon you;" we make the deliberate killing of one's brother illegal.

The wrong of abortion is related to its physical effect on a human being, not some psychic, emotional, or dignitary harm. You can't be internally consistent by wanting a criminal law for homicide, rape, abuse, assault, or other physical harms but not want it for abortoin, while thinking that abortion ought to be discouraged. The reason we are so squeamish about abortion is partially because of the negative effects upon women; however, the bulk of our squeamishness results from the fact that it ends human life. One cannot state that abortion is bad and ought to be reduced, while saying that it should not be criminal, unless one does not really believe in criminal law or the power of the state to begin with.

---

I do not find the actions of "physicians" who perform abortions that are not medically necessary to be anything but reprehensible. They simply do not have the bodily autonomy issues of pregnancy. There is nothing in medical ethics or the law which justifies them being hired hit men.

Incidentally, if it is illegal to beat a pregnant woman so as to cause a miscarriage, why should doctors (presuming abortion to be illegal) not be subject to similar laws? You are not explicating the same treatmetn for doctors that you would for the rest of the population; you are carving out a rule for them, that they - and only they - may deliberately cause a pregnant woman to miscarry, without fear of criminal repercussions.

unless you also believe that illegality actually would have little effect on deterring abortion-seeking women, so the threat of prison to the pregnant women wouldn't reduce abortion rates.

Pretty much. I do think that some MEN will act differently (it has been my experience that men are willing to engage in potentially pregnancy-inducing activities under the theory that "you can just abort"); perhaps some women will also plan ahead. My whole theory is that pregnancy causes a tremendous amount of stress (and, to varying degrees, infringements upon bodily autonomy) that non-pregnant persons do not experience. That stress, IMHO, is a per se mitigating factor in any criminal prosecution; furthermore, it historically has lead women to desperate measures. A pregnant woman is exercising her right to bodily autonomy (albiet a limited right and exercising it in the wrong manner); the physician has no such claim.

....

Does that answer everything? (Probably not - will go through this again later....)

Posted by: theobromophile at September 26, 2007 12:55 AM

theobromophile,

I apologize for the invasion of privacy, but could you say what brand you were using? I just find it really unlikely that a generic Pill could compete in the market at a price of $32/month WITH insurance coverage. Walgreen's charges $27 w/o insurance for Aviane, a "low branded" (i.e., it has a name, but has no advertising budget and competes totally on price) progesterone and estrogen combination contraceptive pill. That's coming from their website, so it can't be state-specific.

free condoms, mandatory child support laws, non-discrimination laws, maternity health parity laws, and the like, what else can we do that will reduce the abortion rate from 1.3 million per year to something like, oh, 25,000/year?

Guaranteed state support for every child born to a low-income mother probably would help. Of course, we've stripped back such support, so that now the federal lifetime limit on welfare is 5 years; a woman who has had one child, run out her time and is hanging on by a minimum wage job is unlikely to find the prospect of unpaid leave and finding an expensive infant care-giver to be a good option. Many women simply cannot afford to have a baby. They know paternal support will be somewhere between limited to nonexistent,

Instead of assuming that total illegalization with criminal penalties falling on the physicians is the best way to reduce abortion rates, why not look at other countries that have much lower abortion rates than the U.S.? The Netherlands and Germany, for example, aren't busily locking up doctors, and while they put some restrictions on abortion, they are ones that I would consider reasonable. (Heck, the floating abortion clinic came out of the Netherlands.) Because Germany's constitutional court said that the fetus is protected from conception, abortion is technically illegal, but Parliament passed a law such that women who have certified counseling, wait three days before the abortion and have it in the first trimester will not be punished. RU-486 was allowed on the market, and is no longer available in Germany only because it was a financial failure, not because the government blocked it. (And I don't think drug companies should be forced by law to carry abortifacients or contraceptives if such drugs are unprofitable.)

For those like Scalia who get the heebiejeebies from international perspectives, let's start studying states, those laboratories of experimentation. Admittedly they all are limited by Casey, but let's see within that frame, which have the lowest rates of abortion (rates being measured by abortions per 1000 women in the fertile range of ages 15-44; no cheating for Alaska and other places with disproportinately fewer women).

Abortion has been illegal in America, yet to my knowledge it never before was penalized only against the physician, and the laws against it never before were based on a theory of murder (i.e. treating the fetus like a murder victim). Abortion, like contraception, was treated as a moral crime against society; Nazi Germany did give the death penalty for abortion, but even then it was because "desirable" fetuses were being lost to the Aryan society.

However, in the current, ahistorical trend of prohibiting abortion based on a theory of murder, the statutes are being written in such a way that physicians not only could be imprisoned, but also executed, for violation. Given that Texas executes other murderers, if one sincerely believes that a fetus is a human being and that abortion is murder, executing abortionists for coldblooded, premeditated murder-for-hire makes sense.

One cannot state that abortion is bad and ought to be reduced, while saying that it should not be criminal, unless one does not really believe in criminal law or the power of the state to begin with.

No, one can believe this if one doesn't agree with your belief that the fetus is a full-fledged human being with the right to stay in the body of a woman who doesn't want it there. One can be "squeamish" about the performance of abortions in the same way that one is "squeamish" about prostitution: that it is bad for the person engaging in it (the physician/prostitute), bad for the person who demands it (the woman/john) and devalues something our society believes should be more valued (fetal life/ sexual relations). One nonetheless can think that the provider *definitely* shouldn't be punished, and that there's not much reason to punish the buyer. (I'm more sympathetic to imprisoning johns than to imprisoning abortion-seekers, however.) I think fetal life is significant, but I don't consider it to be the equal of a newborn infant, particularly if the fetal life is ended so that a woman who has been burdened with carrying it unwillingly no longer is. I am fine with shaming and socially disapproving those who have abortions or pay for sex, because they aren't following social values. But I don't think they are wronging an individual whose rights they are obligated to respect.

That stress, IMHO, is a per se mitigating factor in any criminal prosecution; furthermore, it historically has lead women to desperate measures.

I can't tell if you are using "mitigating factor" in the legal sense or not. A mitigating factor is relevant for sentencing; it is irrelevant to whether an act should be a crime or not. Hence my confusion in the above post about exactly what state of mind you are claiming for the pregnant woman, such that she should not be held criminally liable for conspiring in what you deem to be murder. If she is insane, she is not liable for any crime. If she is guilty but mentally ill, she still is liable but will be held in a treatment facility, not a regular prison. If she is sane, but acting in self-defense (your "bodily autonomy" point), I cannot understand how the person who assisted her could be held liable.

Please explain how your concept of morning-sickness-as-mitigating-factor could permit women to hire physicians to murder their fetuses. I assume neither you nor Thompson think that the stresses of pregnancy are such that *any* action a woman takes to reduce that stress should not be attended with criminal penalties -- hence my reference to the pregnant woman who crosses the border in order to reduce the mental stress of knowing her baby will be born in poverty. Thompson would still prosecute her, just not the woman who deals with her stress by having her boyfriend kick her in the stomach until she miscarries. (This now being the only way she can get rid of the fetus, as no physician can help her.)

I carve out an exception for doctors because only they can responsibly execute an abortion without causing excess harm to a woman. If doctors' method of inducing abortion was one that could be done equally well by 16 year old boys that had knocked up their girlfriends, I either wouldn't prosecute the boys (if it were a safe method) or would revert to prohibiting abortion as too unsafe for the woman to be permitted.

Posted by: PG at September 26, 2007 06:40 PM

What you seem to be saying is that abortion should be legal. Deep down, you don't understand the pro-life perspective, let alone agree with it, so you find it ridiculous that anyone would want to prosecute someone for killing a fetus.

That's another can of worms, one which cannot be debated in the context of, "If we were to ban abortion, how would we do it?" I don't think that alcohol should be made illegal, but I'll debate that on the merits, not on the issue of how we would go about making it illegal.

Fred Thompson's position (going back to the starting place) is that:
1) abortion should be illegal; and
2) as such, we should enforce those laws by prosecuting doctors, not incarcerating pregnant women.

Now, I must say, I love how the pro-choicers are the ones advocating for throwing pregnant women in jail. :) (Hence my terminology of "so-called feminist.")

Now, for your other points:

1) It was in 2001 or 2002. I forget. However, I cited several sources which put the cost of the Pill at $25 or $30/month for those with insurance. Furthermore, those who are the most likely to be uninsured are the most fertile: people in their late teens and early twenties.

2) I find it odd, in your prostitute/abortion example, that you correllate a diminished respect for human sexuality with killing a fetus. Please see above: if you don't understand the pro-life position, you're going to have a hard time articulating why certain parts of it are not internally consistent.

3) Pro-abortion types often revert to socialism. Supposedly, if we pay for children, women wouldn't abort them. Well, let's see here. The abortion rate has not changed in the past 100 years.
-Maternal health has improved; it is very infrequent that women die in childbirth.
-Access to contraception (not payment for, but access to) is a Constitutional right.
-mandatory child support payments
-many places (colleges, Gay/Straight Alliance parades, Planned Parenthood) give out free condoms
-welfare of many forms has been introduced (including that five-year limitation you hate. Did you miss the part where five-year-olds are in school?)
-adoption is quite common
-mandatory laws for hospitals to admit and treat women in labour.

If that hasn't changed the abortion rate, I sincerely doubt that some other liberal panacea will do a damn thing except impose taxes upon those responsible enough not to sleep with men whom they don't want to have babies with. "The United States isn't socialist" is an excuse, and a weak one at that.

4) Don't look at Europe. Their birth rate is significantly lower than ours, which is why they are heading towards a population death spiral that will cripple their economy once they are unable to support the social services programmes that you so adore.

5) I don't know where to start.

If she is guilty but mentally ill, she still is liable but will be held in a treatment facility, not a regular prison. If she is sane, but acting in self-defense (your "bodily autonomy" point), I cannot understand how the person who assisted her could be held liable.


First of all, your defintions of sanity, bodily integrity, and the like are deliberately narrowed to exclude the situation of pregnancy. This is my problem with pro-choicers to begin with: they yell and scream about how horrible pregnancy is (and how it should justify the murder of a human fetus), but then get their panties in a twist when the other side would use that as a mitigating factor.

The definitions of "insanity" have changed throughout the years. So have the punishments and treatments for those who are mentally ill or acting in self-defence. It is obtuse at best to state that we must fit pregnancy within the existing framework, and, if it does not so fit, we must follow your suggestions.

Why can we not introduce a bodily autonomy exception? Those who are faced with non-lethal assault are punished when they retaliate by killing the assailant; those who aid the assaulted person by killing the assailant are punished more severely. Congratulations: you have a framework for abortion. Give women community service and/or counseling; give the abortionists jail time and a loss of their medical license.

I'm intrigued by your wonderfully narrow definition of "insanity" as the one and only mitigating factor for homicide.

6) You haven't heard of pre-modern abortion law? Um, that's a personal problem, PG. Read up on it:
http://www.abortionfacts.com/online_books/love_them_both/why_cant_we_love_them_both_7.asp

There is no evidence that women were prosecuted. Doctors were; women weren't. That's 19th century abortion law for you.

7) If the act of abortion harms the woman and the fetus, why should the doctor not be prosecuted? In light of the fact that post-abortive teenagers are ten times as likely to commit suicide as their never-pregnant peers, why should the doctor not lose his license?

8) We can fight forever about the harm that results from abortion; however, if a person were to believe that it is harmful to both woman and fetus, and that fetal life is taken through the act, then that person would not be irrational is stating that abortion should be made illegal. That person, furthermore, would be rational in understanding the factors which lead women to seek abortion, having sympathy for those, but having zero sympathy for abortionists.

The real issue is this insane issue, drummed up by so-called-feminists, who are doing their best to develop scare tactics. "Women will go to jail!" Whoops, looks like pro-lifers don't want to do that. "Pro-lifers are about punishing women for having sex!" Wait, that doesn't work either. Okay, new tactic: "If you were really against abortion, you would want to throw women in jail!" That's what we are working with. It's not about picking on poor, easily manipulated, bleeding heart doctors; it's about cutting off the supply of abortionists. They don't have a dog in the fight; they should be prosecuted for aiding in murder.

9) On the subject of your socialistic "solution:" Heard of CareNet? Heard of Catholic Charities? Heard of the fact that Planned Parenthood performs 186 abortions for every adoption or adoption referral? You basically have to beg them to help you find adoptive parents.

Looks like the pro-lifers are doing their part to help out pregnant women. It's the pro-"choice" side that is hell-bent on throwing pregnant women in jail or demanding a socialistic state, or both.

10) As for a safer abortion: why would I care? I don't think abortion should be safe. A woman can't get a nice, safe abortion? Boo frickin hoo. Last time I checked, there is no right (legal or moral) to have a nice, safe way to commit crimes.

Posted by: theobromophile at September 27, 2007 03:31 PM

I'll only interrupt for a fairly minor point.

Theobromophile wrote: "One cannot state that abortion is bad and ought to be reduced, while saying that it should not be criminal, unless one does not really believe in criminal law or the power of the state to begin with."

Certainly one can. While one's personal morality might recognize that abortion is morally repugnant for any number of reasons, you might still choose to not criminalize it based on your understanding that a significant portion of the population disagrees with you. I can think of any number of things people might find morally repugnant that they do not necessarily want criminalized: energy wasting, eating meat, vocal support for various idealogies (communism, fascism, racism, etc.), prostitution, drug use, smoking cigarettes, etc. There's no reason why this logic doesn't apply to abortion. Why can't a person believe that abortion is wrong, but still support the right of others who don't believe it is wrong to have it be available to them?

Posted by: Dave at September 28, 2007 04:14 AM

I agree on the outside points (I know people who disagree with alcohol, cigarettes, and contraception, but would not want to make those things illegal). However, on points which affect other people (and abortion, clearly, ends the life of a human), we generally "force" laws on parts of the population that do not agree with us.

The best analogy I can make is owning slaves. Now, if you can make the argument that internally consistent people will argue that slave-owning is bad, but believe it to be a private decision, fine.

Perhaps I did not express myself well. People who are being honest with themselves aned internally consistent, generally, will want to criminalise actions which harm other persons. (I distinguish between those actions that do not directly harm others - i.e. drinking, contraception, prostitution with consent - and those that do harm others - drunk driving, cocaine distribution, abortion.) There is a sort of spinelessness that goes along with saying, "I believe this action brings direct, severe, and irreversible physical harm to another person, but I support people's rights to choose to harm their fellow man that way."

The evil of abortion is usually considered to be related to the harm it brings to a human who, by right, should not experience that harm. It is incredibly weird to acknowledge that harm but believe that the person with greater physicial capabilities has the right to bring that harm. We aren't talking about drunken debauchery, dropping out of high school, or the like: we are talking direct physical harm - the exact sorts of things that government ought to protect against.

Posted by: theobromophile at September 28, 2007 06:54 PM

Re: 6). If you can't recognize that your source on abortion history is misleading when it claims "In short, women were not prosecuted for abortions. Abortionists were. [...] Given the American legal system's reliance on precedent, it is unlikely that enforcement of future criminal sanctions on abortion would deviate substantially from past enforcement patterns," then there's little point in our discussing law.

There is a fairly massive difference between prosecutorial discretion and statute/caselaw; the latter constitutes precedent, the former does not (hence the term "discretion"). The Arizona Supreme Court's refusal to give Sherri Finkbine immunity from prosecution, when she had stated an intention to abort the severely deformed fetus that she was carrying, makes clear that women *could* be prosecuted under abortion laws should a prosecutor so desire. Unless you have been arguing entirely as a legal realist who doesn't consider something to be law unless it was widely enforced, "That's 19th century abortion law for you" is a useless statement. "That's the evidentiary burden of proving an abortion when the main person who would know whether she was pregnant was the defendant" would be a statement cognizant of law. As for pre-19th century, even a prolife book like Abortion Rites acknowledged that Maryland sought to prosecute women for "intention to abort" as well as actual abortions.

Re 3). "The abortion rate has not changed in the past 100 years." I suppose if you think 763k (1974) is the same as 1.429mil (1990), then sure, the abortion rate hasn't changed. Where I learned math, however, that's a near-doubling of the number of abortions without a commensurate near-doubling in the number of pregnancies/ fertile-aged women/ births -- i.e., a change in the abortion rate just in a 16 year span, which was followed by a decrease by 2000 to a level more like 1974 than like 1990. But these are figures that it's best to ignore if you don't want to consider the possibility that basic economics might determine whether women seek an abortion, i.e. a recession makes another baby look unaffordable, whereas prosperity makes abortion less appealing.

Re: 7). However, I suppose this shouldn't surprise me when your statistical rigor is along the lines of comparing never-pregnant teens to ones who have had abortions, instead of comparing the outcomes of teens who have been pregnant and made different choices (abortion, adoption, raising the baby alone, raising the baby with the father) to each other, accounting for factors such as socioeconomic and family status (compare aborting teens from stable, educated, nonabusive families with adopting teens from stable, educated, nonabusive families). Yes, I can see how a teen who gets knocked up by a guy who ditches her and then has an abortion might be more suicidal than a teen whose boyfriend is concerned about her reproductive health and either doesn't have vaginal sex or is scrupulous about birth control. I bet women who are treated for eating disorders also are more suicidal than women who have excellent body image; shall we also prosecute doctors for the anorexic because their patients' outcomes are worse than those of comparable women who never had the problem to begin with?

Re 3). Also ridiculous is the implied claim that only women who are sleeping with men with whom they wouldn't want to have a child (presumably by that you mean unmarried women) are having abortions. More than half of abortions are on women who already have children, and before the legalization of birth control, most abortions were on married, not unmarried, women. The most common abortion situation is that of a woman who believes that she cannot afford *another* child, not of some feckless baby-hater who deliberately foregoes birth control with the intent of having an abortion.

You and Thompson are not urging a law that would make any participants in an abortion liable, and leave to prosecutorial discretion whether or not to prosecute the woman who sought the abortion (e.g. granting immunity in return for testifying against other defendants).

If you would like to use historic prosecutorial discretion as a example for future conduct, you'll have to be content with little punishment for abortionists relative to the number of abortions conducted. The focus on prosecuting physicians stemmed from the days when abortion was very unsafe, and if you read historical sources (try something as basic as the NYTimes archives 1880-1980*), you'll see that abortion doctors generally were being prosecuted not only for the abortion, but for having killed or severely injured the woman in the process. Moreover, they were charged with manslaughter (i.e., an unpremeditated killing) because of the accidental death of the patient, not with the murder (cold-bloodedly premeditated) of an "unborn child." This does not fit with your view of physicians at all -- no death penalty, unlike the statutes of our present enlightened times.

As I already said, I have no disagreement with banning an unsafe medical procedure; I believe this to be well within the state's power. What I dispute is the state's ability to enforce some citizens' conception of morality on others. When abortion was unsafe, the medical associations themselves reviled it as malpractice; as it became safer in the 1930s and later, they began to consider it compatible with a physician's obligations.

Re 4). I'm puzzled as to your refusal to even consider how the Netherlands and Germany manage to have lower abortion rates, when such refusal is made on the basis of their having lower birth rates. Well, yes -- and doesn't that indicate that they are succeeding in avoiding unwanted pregnancies, if women are neither aborting nor delivering unwanted children? I confess that to me, avoiding the unwanted pregnancy in the first place seems an even better solution than adoption, but you seem to think otherwise. Also, to me prosecuting a post-abortion woman is not prosecuting a pregnant woman, pretty much by definition, but here too you seem to think otherwise.

As for your general theory of pregnant women as a special category of defendant;
of pregnancy as a mitigating factor in all crimes and a total excuse for abortion, which you consider to be premeditated homicide;
of feminism as a project to make women's lives easier at the expense of those whom they have asked for help;
and of displaying compassion toward unwillingly pregnant women by wanting to make their lives more difficult by removing the possibility of a safe, legal abortion...

stay tuned for a future post, because if your beliefs are representative of Fred Thompson's, he's a much more radical feminist than America is ready for.

*The archives, incidentally, are just generally fascinating. For example, in 1939 public officials already were worrying about increases in unwed motherhood among high school age girls.

Posted by: PG at September 29, 2007 12:35 AM

Oh, and as for Dave's point, I think part of what he may have been saying is that there is disagreement on whether a nonviable fetus (Casey allows for prohibitions on aborting fetuses viable outside the uterus) is a person. If everyone were convinced that a 3 month fetus is a person, probably the harms to women's bodily autonomy would be overridden by the harm to another person, and abortion would be illegal.

But if everyone were convinced that an embryo was a person, reproductive clinics would be heavily regulated to ensure that no embryos were produced that were not going to be implanted, and of course both embryonic stem cell research and any contraceptive that makes the uterine wall inhospitable to an embryo's attachment would be illegal. The contesting of what constitutes a person is fairly central to the abortion debate.

Those who claimed that African-Americans were not persons and therefore could be enslaved had the difficulty of finding any aspect of personhood that was true of nearly all whites yet did not apply to at least one African-American (given the designation of 1/16th black Americans as "Negro," even skin color was not a reliable point of distinction).

This difficulty does not face those who deem post-viability fetuses to be persons but pre-viability fetuses not to be: most post-viability fetuses do not require a specific, unwilling person to assist them with basic life functions such as breathing, whereas most pre-viability fetuses do. Many people, including myself, consider this a morally relevant distinction between the two: a woman who no longer wishes to carry a viable fetus can be required to execute her wishes through a medically-supervised C-section or induced labor delivery. However, a woman who no longer wishes to carry a non-viable fetus would not be doing the fetus any particularly great favor by having either the C-section or induced labor, as it wouldn't long survive either procedure.

Posted by: PG at September 29, 2007 12:55 AM

Glad you bit on the "abortion rate has not changed in the last 100 years."

My source? Susan Faludi's Backlash.

Moving onwards to your "stats": colour me confused. The CDC claims that there are about 850,000 abortions in America every year; every other statistic that I've ever seen puts that number at 1.3 million. The CDC's number is 65% of the other number. Pardon me if I ignore that part of your response.

The Guttmacher Institute has little reason to inflate the number of abortions performed every year. Its number is 1.29 million.
http://www.guttmacher.org/media/presskits/2005/06/28/abortionoverview.html


More than half of abortions are on women who already have children, and before the legalization of birth control, most abortions were on married, not unmarried, women.

I'm aware of the first part. Doesn't mean they are married. Secondly, birth control was legalised over forty years ago. That is hardly relevant to the discussion of twenty-first century abortion.

There is a certain irony in killing one child to better provide for the others. Personally, I would much prefer to see physicians who are willing to perform sterilisation procedures; they are quite difficult to obtain. Oddly, it's easier to abort than to ensure that, once done with childbearing, one will not get pregnant.

You and Thompson are not urging a law that would make any participants in an abortion liable, and leave to prosecutorial discretion whether or not to prosecute the woman who sought the abortion (e.g. granting immunity in return for testifying against other defendants).

Perhaps we have radically different views of the wisdom of prosecutorial discretion in this area. Perhaps we also have radically different views about the logical effects of a prohibition against self-abortion.

Given how little protection the Fourth Amendment really gives, I would be frightened by a law which prohibits a woman from terminating a pregnancy. Any fertile, sexually active woman in a bar could be charged with manslaughter. Her alcohol consumption could either: 1) cause an early-term spontaneous abortion, or 2) decrease the quality of her eggs so that they would either not implant or abort soon afterwards. Probable cause? What then - do you force women to undergo gynaecological exams to prove that they were not pregnant?

Would a woman whose period was a week late, then arrived, be prosecuted? Would the police start harassing women who buy pregnancy tests?

Should we just hope that the police and prosecutors would play nicely with women and acknowledge (the actual, real) right to privacy in their bodies, or would they be subjected to humiliating "evidence-gathering" procedures at will?

What checks would you implement to ensure that women with no intention of having an abortion are not harassed?

I do not think that Fred Thompson's views perfectly mirror my own. The origin of this debate was my defence of him against so-called feminists. It's not us who wants to throw women in jail; it's the radical feminists.

I disagree with Sherry Colb on a lot of things, but she makes the point well:
http://writ.news.findlaw.com/colb/20070822.html

I'm puzzled as to your refusal to even consider how the Netherlands and Germany manage to have lower abortion rates, when such refusal is made on the basis of their having lower birth rates. Well, yes -- and doesn't that indicate that they are succeeding in avoiding unwanted pregnancies, if women are neither aborting nor delivering unwanted children?

Er, yes, that would be my point in response to your assertion that the reduced abortion rate has more to do with their abortion laws than with anything else. My point was that, given their radically lower birth rates, it probably has to do with things that happen before pregnancy.

So we take the same interpretation of the data; however, you add another interpretation, which is much better explained by my interpretation.

Stop contradicting yourself, and I'll make more sense. :)

of pregnancy as a mitigating factor in all crimes

NO CLUE where I said that. Again, with the radical intepretations....

I'm aware that Dave said that there is disagrement over whether a non-viable fetus is a person. It doesn't matter, though, because those who think it is a person should want to impose their morality on others. I think African-Americans are persons, which is why I happily impose my morality on others and discourage racism.

Personhood is not an idle issue. For those who truly believe that fetuses are persons, there is no reason to tolerate abortion.


Posted by: theobromophile at September 29, 2007 09:57 PM

As for viability... worst argument ever! Quick summary:

Viability changes by location, conditions, health of the mother, and time. A fetus which is "viable" in a woman who is visiting her nurse friend in Brigham & Women's is not "viable" in a woman in sub-Saharan Africa. Likewise, if the 24-week-pregnant women in B&W were to then go to Fargo, North Dakota, and be snowed in during a blizzard, with no hope of rescue from her house for three days, her fetus would not be "viable."

Ergo, she would not have a moral right to abort, under your scheme, while visiting her nurse friend in Boston, but would the next week when trapped in a blizzard in North Dakota.

Oh, yeah, that fetus in North Dakota? Even at 40 weeks, it isn't "viable" without its mother. If there's no formula in the house, she's obligated to use her body to sustain its life, without which, it would die. Children are not viable until well past the toddler years without someone to care for them. For the first 40 weeks of their life, and circumstances depending after that (i.e. availability of formula), fetuses and babies are not viable without their mothers. No Infamil or wet nurse? Sorry, you're not viable unless Mom can breast-feed. Should she be able to kill it instead of using her body to sustain it? Congrats, PG, you just justified situation-dependent infanticide.

Let's not forget that technology has changed our definition of viability. Back in the day, when the infant mortality rate was around 33%, newborns were questionably viable. Now, viability (in the developed world) is around 24 weeks. Obviously, technology will one day be available to change that date.

So if you want "personhood" to be triggered by "viability," what you are saying is that the same human will be a person depending on where it exists and in what time period. As I said before, it has the effect of making a fetus a person one day and not a person the next day.

While I understand that many people believe that intellectually vacant nonsense, it does not mean that those who don't swallow it are "imposing their morality on others" should they believe that humans have the rights of persons.

By the way, women aren't really allowed to get C-sections whenever they choose. It's not like, if fetal viability were moved back to conception, that women would be allowed to discharge themselves of the burden. Fact is, even babies born at 30 weeks suffer some pretty severe problems. (My little sister had brain haemorrhaging and later learning disabilities, for example.) Doctors aren't going to just say, "Fine, your fetus is at 1.5 lbs, let's deliver." (Perhaps the law would so permit; however, as a matter of daily practice, it's not going to happen... mostly because doctors are going to be unwilling to harm a viable fetus.)

----

of displaying compassion toward unwillingly pregnant women by wanting to make their lives more difficult by removing the possibility of a safe, legal abortion...

Well, PG, I presume that you display compassion towards the poor by allowing them to embezzle.

There is no moral right to safely commit murder. Frankly, considering how many women live to regret their abortions (and that six times as many post-abortive women are in National Right to Life than in NARAL), I think it's pretty clear that women who have obtained aborrtions feel the same way. Who is left, besides baby-daddies and those who are too cold-hearted to realise taht ending human life is not a good thing for anyone?

However, I suppose this shouldn't surprise me when your statistical rigor is along the lines of comparing never-pregnant teens to ones who have had abortions, instead of comparing the outcomes of teens who have been pregnant and made different choices

Try to be civil. I don't have the stats for the latter; if they mean so much to you, find them yourself. Perhaps no one has ever done a study.

My deepest apologies for not commissioning one myself. /sarcasm

Re: your response to my #6: Again, sincere apologies for not finding a freakin treatise on abortion law in all 50 states prior to Roe.

Burden of proof, honey: you think that women were prosecuted (in enough numbers to actually be significant) and that the law so allowed: find the evidence yourself. I'm not doing your research for you.

if you don't want to consider the possibility that basic economics might determine whether women seek an abortion,

Again, remain civil, dahlin.

::Shakes head:: Really, PG, need I give a full treatise of why women might abort?

FYI: 2/3ds of abortion are among never-married women:
http://www.guttmacher.org/pubs/fb_induced_abortion.html

So I think that takes your 1960s era argument down. :)

On average, women give four reasons for choosing abortion. Three-fourths of women cite concern for or responsibility to other individuals; three-fourths say they cannot afford a child; three-fourths say that having a baby would interfere with work, school or the ability to care for dependents; and half say they do not want to be a single parent or are having problems with their husband or partner.

Fine, it's not affordable. But let's figure out why babies were presumably more affordable back in the day and aren't now.

Start by reading this:
http://www.nytimes.com/2004/07/18/magazine/18LIVES.html?ei=5090&en=f4176027eece64e3&ex=1247889600&pagewanted=print&position

Choice quote:
"When I found out about the triplets, I felt like: It's not the back of a pickup at 16, but now I'm going to have to move to Staten Island. I'll never leave my house because I'll have to care for these children. I'll have to start shopping only at Costco and buying big jars of mayonnaise."

My point was that we've done a tremendous amount, since the 19th century, to help pregnant women afford children. Between paid maternity leave, non-discrimination policies, SCHIP, Medicaid, and the like, it's really hard to say, with a straight face, that a million American women a year would stop aborting if we were to just cave in to socialism.

Five years of welfare - not enough. Free health care for children - not enough. Paid maternity leave - not enough. Pray tell, why would the magic bullet of subsidised child-rearing work?

What I dispute is the state's ability to enforce some citizens' conception of morality on others. When abortion was unsafe, the medical associations themselves reviled it as malpractice; as it became safer in the 1930s and later, they began to consider it compatible with a physician's obligations.


What are our laws, but the imposition of morality by the majority upon the minority? For those who see no moral wrong with murder, harassment, stalking, rape, torture, or the like, our laws impose morality. What percentage need concur before it ceases to be an "imposition of morality?"

This isn't about a whorehouse. This is about, plainly, human life. Pro-choice laws, incidentally, also impose morality upon the population - a certain, twisted morality, but one nonetheless. I still care about that imposition of morality, even though I am not in a position (i.e. in utero) to be harmed by such practices.

As for the unwillingness of a woman to provide basic functions: since when do liberty interests (of those who put themselves in that position to begin with) trump life interests? This is very much like the idea of the liberty of one person to swing his fist ends where another's face begins.

It's much easier for the woman to prevent the situation than it is for the fetus - in fact, is is impossible for the child in question to have prevented its dependence upon its mother. In almost every situation, however, women were able to prevent the dependence in question.

The harm must fall upon one individual. It can either be a temporary loss of liberty to the woman, or a permanent loss of life for the other party. Furthermore, the party which asserts the lesser interest was in the better position to prevent the harm in question.

Frankly, all you are espousing is the idea that the stronger party should be able to use its superiour physical and social position to negate the rights of the other party. I find that to be morally offensive.

If you would like to use historic prosecutorial discretion as a example for future conduct, you'll have to be content with little punishment for abortionists relative to the number of abortions conducted.

Um, NO! :)

It was an evidentiary issue, largely. It was easiest to prosecute for abortion when a woman came into a hospital in septic shock.

Even if I were to accept your line of reasoning, do we not do the same thing with littering? or carpool lane violations? Usually, the best way to deal with it is to increase the punishment. Littering fines in California are about $1,000 each, to discourage people from even taking the chance. Likewise, carpool lane violations are $200 to $400.

Those who claimed that African-Americans were not persons and therefore could be enslaved had the difficulty of finding any aspect of personhood that was true of nearly all whites yet did not apply to at least one African-American (given the designation of 1/16th black Americans as "Negro," even skin color was not a reliable point of distinction).

That presumes two things:
1) those who can find a reliable point of distinctions are justified in using that distinction to grant differing rights, even if the distinction is not logically related to the rights in question; and
2) that people didn't try awfully hard. The phrenologists exploited the differences in skull structure to bloster the belief that blacks were inferiour to whites.

Notice a pattern? When it is convenient to deny rights to a certain group of humans, people come up with all sorts of ways to pretend that they aren't really human, or aren't people, or, even if they are, are not worthy of rights. Pick any characteristic; it'll do as a justification.

Final question: what do you think of fetal homicide laws? Should Scott Peterson have been charged with double homicide? Why do we have one, lone exception for doctors? When anyone else causes a woman to abort, it is some form of a crime (from assault to homicide).

Do you see why I believe that we should remove the physician exception?

Posted by: theobromophile at September 29, 2007 10:52 PM

Why should Faludi be considered a better source than the CDC on abortion statistics? Can you provide the footnote where she gets her information? I assume state health departments are not reporting to Faludi at the same time they report to the CDC.

Your obsession with the idea that the same number of abortions are done every year is blinding you to actual statistics, which show variation over time in the number of abortions. E.g., you say, "The CDC claims that there are about 850,000 abortions in America every year," when the CDC claims nothing of the sort. As I pointed out, the CDC in fact shows tremendous variations in the abortion rate since Roe, with the last reported year that I've seen from them being 2000. Your preferred source, the Guttmacher Institute, shows similar variation. The link you provided says "In 2002, 1.29 million abortions occurred, down from 1.36 million abortions in 1996." The CDC reported 1.225 million abortions in 1996, which is a meaningful disparity, but certainly not one sufficient to cause me to think that the CDC is wildly underreporting to the extent that I should assume its numbers are bullshit and use Susan Faludi as a source instead.

The CDC undercounts because it sticks to the exact number of abortions reported from state health departments, whereas the Guttmacher Institute makes estimates based on its surveys of abortion providers.

If we're going to cite family members as useful references for public policy (as you seem to do quite often -- after reading only 6 of your posts and however many of your comments here, so far I've heard about your stepdad the immigrant and your sister the preemie), I can point out that my mother had very little trouble getting a hysterectomy after she had delivered her third child and declared herself done with childbearing.

From what I hear, gynecologists are just as happy not to have extra stuff in women that could turn cancerous. They're very reluctant to sterilize childless women because of the concern that the woman later will want to be able to bear children. Please provide the source for your claim that "it's easier to abort than to ensure that, once done with childbearing, one will not get pregnant." There are no abortion providers in the county where my mother had her hysterectomy, but there clearly was at least one doc happy to sterilize her.

Prof. Colb is far more rigorous in her discussion, even in a layman-oriented venue, than you generally have been in your sloppy use of the legally meaningful term "mitigating factor." She takes your belief -- that pregnant women ought not be punished -- and dismisses its being based on the legal theories of justification, excuse and victimization. She does not refer to your grossly misused concept of a "mitigating factor" that erases the crime. Instead, she concludes, "If one is prosecuting abortion providers, then, it would seem that in fairness, women should not enjoy an exemption from such prosecution. ... Pregnancy is a unique condition that demands special treatment as a matter of simple equality. It is this uniqueness that, in my view, provides the basis for the right to terminate a pregnancy." Perhaps this can be interpreted as somehow actually supporting your position; I'll ask her what she meant by it at our next appointment.

Your first genuine legal argument thus far has been a slippery-slope one: that if pregnant women can be prosecuted for killing their fetuses, non-pregnant women will be arrested for manslaughter when seen drinking. Of course, women already are being prosecuted for manslaughter if their babies are stillborn and test positive for drugs. Have you been campaigning to change the laws in South Carolina, Oklahoma , Hawaii et al, or are you only worried about prosecutions for possible harms to a fetus if you think your nonpregnant self might fall in the police dragnet?

Given how little protection the Fourth Amendment really gives, I would be frightened by a law which prohibits a woman from terminating a pregnancy.

If your goal is to remove medical professionals from the abortion process, then your fear of prohibiting women from terminating their pregnancies makes sense. Again, I can only say that RU-486 will become extremely popular, and precautionary women who can imagine a situation in which they would want to abort will keep a supply in their cupboard the same way they now keep Plan B if they imagine a situation in which they need emergency contraception. If your goal is actually the one you have stated, i.e. minimizing the number of abortions, then prohibiting abortion no matter who makes it happen is the method most likely to achieve that goal.

So your interpretation of the Netherlands and Germany is that they are doing things before pregnancy to ensure that women don't have those unwanted pregnancies. OK, could we perhaps examine what those policies are, or is the terror of learning anything from countries with lower birth rates too great?

NO CLUE where I said that [pregnancy is a mitigating factor in all crimes]. Again, with the radical intepretations....

Here's your clue: your comment timestamped September 26, 2007 12:55 AM, in which you said, "That stress [of pregnancy], IMHO, is a per se mitigating factor in any criminal prosecution."

If you don't actually mean to be referring to "all crimes" when you say "any criminal prosecution," please make that clear.

All legal definitions could be subject to situation, and indeed some are, as in the instance of "neglect" meaning a failure to feed one's child, except when the child has been kidnapped and therefore one is incapable of feeding him. Similarly, whether a fetus is viable may well be specific to whether the woman is *capable* of delivering the baby in an environment where it could be kept alive by others' efforts. If a woman is the only person who can keep a fetus alive, and she never has wanted to, then she should be able to abort it. If she can get to a hospital whether others could keep the fetus alive, then she has an obligation to do so.

I realize that due to your belief in pregnancy's crazy-making capabilities, you easily imagine a pregnant woman suddenly deciding during a blizzard that she no longer wants to be pregnant and trying to self-abort, but that's exceedingly unlikely. (Indeed, a woman who wanted to be pregnant right up until she was trapped in a blizzard and then attempted to self-abort might qualify as temporarily insane, but under existing jurisprudence, that temporary insanity also would explain why she stuffed a live dog in a woodchipper and performed other acts normally punished under law.) The law can (and does) set a general standard of "viability" and prohibit abortions after it, and is able to make exceptions where those are relevant. Neither your blizzard nor your African woman are relevant; one is ridiculous and the other extraterritorial.

If you think that viability is the wrong point of determining legal personhood, where would you set it? At fertilization, thus rendering the burial of unused embryos a crime? At gastrulation, so we know whether this is one legal person or two? At any point in the first trimester, so that this period of frequent miscarriages (sometimes before the woman knows she's pregnant) can be a time when that fetus could inherit from its father and then when miscarried give its inheritance to its mother?

women aren't really allowed to get C-sections whenever they choose.

What do you mean by "allowed"? Certainly there isn't a law against it (indeed, in Utah there's apparently a law against NOT getting a C-section you don't want). Can you cite to a medical board's decision that giving a C-section in this situation is reason to revoke a physician's license? Suppose a woman says, "I don't want to be pregnant and I've come to this hospital because you can keep this fetus alive. Either give me a C-section to relieve me of the burden of pregnancy, or I'm going to relieve myself of it." (In your preferred world where she could self-abort legally, she doesn't have to worry that declaring the intent to kill the fetus will result in her prosecution.) I think the doctors would do the C-section.

There is no moral right to safely commit murder.

But in your world, there is a legal right to unsafely commit it. OK.

I don't have the stats for the latter

If you don't have relevant statistics, then don't bother citing irrelevant ones. And if you don't know what the law was and haven't even glanced at some of the most well known histories of abortion, then don't make sweeping claims like "There is no evidence that women were prosecuted." When you say that, the burden of proof goes on you. I found an instance of pre-Roe prosecution just with a single Google search that turned up cases. Pro-life websites are not a fantastic source of objective research. Neither are pro-choice websites. Try work by actual historians.

If you think a woman who writes an op-ed for the NYTimes is a typical case of abortion, you're even more ignorant of who gets abortions than I had realized. Short version: most women getting abortions would be delighted if Staten Island, Costco and big jars of mayo were all of what having a baby entailed for them.

FYI: 2/3ds of abortion are among never-married women:
http://www.guttmacher.org/pubs/fb_induced_abortion.html

So I think that takes your 1960s era argument down. :)

I'm not sure how many more times I can reiterate this: abortion has changed over time. If Faludi says otherwise (and I'd really like to get the page number, as I just tried the Amazon "search inside" feature on Backlash and didn't spot such a claim), she's recklessly wrong. The rates have changed; the characteristics of the people getting them have changed. If you want to disprove something about the 1960s, cite a source that actually talks about the 1960s, not the Guttmacher Institute's research about post-Roe abortions.

What "back in the day" are you thinking of when babies were more affordable? Again, before birth control (especially female-controlled contraception through the Pill), married women were more likely than unmarried women to be getting abortions, because married women were having sex a lot more (even if they didn't want to, b/c "back in the day" rape couldn't occur in marriage). Married women would bear some children and then feel that their health and/or resources couldn't bear another one, and start aborting their pregnancies.

As is apparent from the 61% of abortions currently being done on women who have borne at least one child, one baby may be affordable where three babies aren't. This to me is fairly basic economics; if pointing it out is "uncivil," then I'll keep my B.A. and deal with being uncivil. I prefer it to living under delusions like the notion that all American women receive paid maternity leave.

Pray tell, why would the magic bullet of subsidised child-rearing work?

It might work because it addresses one of the concerns named by a majority of women who have abortions in your own statistic "three-fourths say they cannot afford a child": now they could.

For those who see no moral wrong with murder, harassment, stalking, rape, torture, or the like, our laws impose morality.

Find me the person who is happy to be alive and wouldn't want his own murder, harassment, stalking, rape, torture etc. to be punished. Pretty much all people think these are wrong when done to themselves; they just don't like to put themselves in another person's shoes.

I'm happy to say that abortion should be limited only to those who believe that their own mothers should have been able to abort them. Frankly, I'm sick of the women who free-ride on the right to abortion and look down on the other women who use that right.

Frankly, all you are espousing is the idea that the stronger party should be able to use its superiour physical and social position to negate the rights of the other party. I find that to be morally offensive.

I don't think the fetus has a legal right to use an unwilling woman's body for life support any more than I have a legal right today to a single drop of blood from my mother's body if she is unwilling to give it. You are morally offended because I don't agree with your conception of legal rights.

It was an evidentiary issue, largely. It was easiest to prosecute for abortion when a woman came into a hospital in septic shock.

Um, how do you plan to prosecute for abortion in these post-septic shock days, then? If you plan to rely on the women in NRLC to report on doctors, they'll still have to prove that they did receive abortions from said doctors and that they had not provided a legally acceptable excuse for the abortion (given your reliance on the idea that volunteering for sex = volunteering for pregnancy, I assume that rape would be such an excuse?).

Litterers, carpool violators et al also have to be reported by someone who witnessed the misdemeanor. And revocation of a professional license, imprisonment and felon status demand quite a bit more in the way of proof of the crime than simple fines do.

The phrenologists found that 1/16 black people had different skulls than 100% white people? That's something I didn't know about phrenology. I know there can be ethnicity-tracked variations (as between the Hutu and Tutsi, whose enmity was created in large part by Belgian imperialists who preferred Tutsis because their skulls were bigger, they were taller, and their skin was lighter), but I hadn't realized that it could survive large quantities of racial intermixing. Learn something new everyday.

Final question: what do you think of fetal homicide laws? Should Scott Peterson have been charged with double homicide?

Certainly; Ms. Peterson was 8 months pregnant, the fetus was viable at the point Peterson committed the murder, and thus under my standard two legal persons were killed.

Why do we have one, lone exception for doctors? When anyone else causes a woman to abort, it is some form of a crime (from assault to homicide).

If a doctor premeditatedly kills a viable fetus except to save its mother's life, he should be charged with a crime. I'm not urging an exception for him. If another person causes a woman to abort WHEN SHE DOES NOT WANT TO ABORT, that is an assault on her. When the abortion is caused after viability, it is a homicide of the fetus.

Non-doctors who attempt what is regulated to be solely a medical procedure get in trouble regardless of what the procedure is. I would go to jail if I responded to a friend's bemoaning of her excess fat by slicing open her thighs in an attempt at amateur liposuction. I also would go to jail if I responded to her bemoaning of an unwanted pregnancy by slicing into her uterus in an attempt at amateur abortion. I am fully supportive of states' regulation of medicine when it is done to keep laymen from playing doctor.

Your belief that we should remove the physician exception may be consistent with the other beliefs you hold, but is not consistent with my understanding of the state's proper role in regulating medicine.

Posted by: PG at September 30, 2007 02:21 AM

Ohhh... you're getting cranky! Nice personal attacks. :)

You're also getting sloppy. It's not becoming. You stated that:
OK, could we perhaps examine what those policies are, or is the terror of learning anything from countries with lower birth rates too great?

due to your belief in pregnancy's crazy-making capabilities

If you think a woman who writes an op-ed for the NYTimes is a typical case of abortion, you're even more ignorant of who gets abortions than I had realized.

Because all pro-lifers are crazy, ignorant, stupid, xenophobic monsters. Awww, PG, you've swallowed the pro-abortion Kool-Aid.

1. I have no fear of learning things from other countries. I just think we ought to learn the correct lessons. Again, with your sloppiness: you look at countries with radically lower rates of unplanned pregnancy and then determine that their abortion rates must be lower because of their different abortion laws. That's just silly.

2. I never said that the Costco mayonnaise monster is indicative of every or most women who have abortions because of economic concerns.

Now, on to a more salient point: yes, 3/4th of women cite, inter alia, economic concerns. This does not lead inextricably to your conclusion that we need to implement socialism for three reasons:
1) The women also cite other reasons for aborting; economic concerns are not always the "but for" cause for abortion. The fact that 75% of women cite reasons beyond economics shows us that implementing socialism is not a panacea.
2) "Economic reasons" includes everything from abject poverty to not wanting to pay for a nanny. If your blog is any indication of your mental capacity, you can surely understand that "economic reasons" encompasses more than childcare needs; as such, your proposed solution falls far short of the mark.
3) What about adoption? How many of these women are truly incapable, economically, of carrying a pregnancy to term?

3. Regarding my comment about criminal prosecution: I presumed that, since we were discussing criminal prosecution with respect to abortion, I did not need to state, each and every time, that I am discussing criminal prosecution with respect to abortive procedures and only with abortive procedures. I presume you are being deliberately obtuse. Fine. Your blog, not mine. Take the correction and either apologise or, at the very least, cease making false claims.

---

First of all, there is a fundamental area of disagreement between us: you believe that an abortion is a medical procedure. I believe that it is not. As such, I fully believe that a state may restrict physicians from doing it (well, would be able to, but for Roe and its progeny), as it may restrict others from doing it.

For those of us who think that abortion is murder and, therefore, not a valid exercise of medical action, the question then becomes, "What do we want to do, legally, to prohibit abortion?" We can punish the supplier or the consumer, or both.

Sweden, incidentally, has managed to radically reduce its prostitution (and child sex-trafficking) rates by making the act of being a prostitute legal, while making it illegal to solicit or pay one. Ergo, men get punished; women do not. The theory is that 90% of women who were prostitutes wanted out of the profession; many were abused, raped, and threatened. When it is illegal for them to engage in their business, they cannot seek help from the outside community without fear of prosecution. Men who solicit their services, however, have no such concerns. As such, they may be punished.

End result: radical decrease in prostitution and child sex trafficking. IMHO, that is the approach we should take to pregnancy. I don't want a woman who wants to abort to not seek help because she is afraid of the authorities; I want her to seek prenatal care, adoption options, or parenting classes. I want her in a place where society can help her. As you point out (and of which I was well aware, prior to this discussion), women have been prosecuted or otherwise bludgeoned by the legal system for not allowing C-sections or the like. We don't need more of that.

However, there is little reason for doctors to perform elective abortions. You think that the anguished wails of a would-be mother have some sort of crazy-making effect on doctors, whereby they cannot resist the Siren song of "Abort! Abort!" I, however, think that it's their freakin JOB to either ignore a plea to do wrong, or to help the woman seek help for a crisis pregnancy. It's not his job to alleviate every problem in her life; it's his job to keep her healthy. As such, an abortion to save her life is within his practice; it is not within his rights as a physician to make her happier by killing her child.

Again, you are fixated on "crazy-making." It's actually cute. I do not believe that pregnant women are crazy, irrational, or otherwise incapable of making good decisions. I do, however, believe that they are under a unique stressor: nine months of reduced bodily integrity.

Mostly, this stems from my philosophy of "abortion rights:" women have the right to bodily integrity, but do not have the right to achieve that end by abortion. (I have the right to keep and bear arms, but may not achieve that by stealing a gun from my neighbour. The fact that a right exists does not mean that all methods to achieve it are justified, or the only method to achieve it is justified.) As such, I think that a pregnant woman has every right to seek a means to be not pregnant, but such an end cannot be achieved by killing the fetus.

How would you feel about a doctor who, seeing a patient in dire need of an organ transplant, removes a lung or a kidney from a comatose person? Or, for you, is it only the threat of self-harm that gives the physician sanction to perform an abortion?

---

You dismiss my example of Africa and blizzards in a very quick way. Hate to break it to you, but you're wrong. If we are arguing moral rights and natural law, neither one stops at our borders, nor changes with time. Secondly, you deliberately ignore the thrust of the blizzard scenario. A woman who is pregnant with a "viable" fetus that cannot survive without hospital care, yet has no access to that care, is not really carrying a viable fetus. It is very much akin to a woman who is 20 weeks pregnant in 2007; the fact that, in 2050, such a fetus may be viable is entirely irrelevant. For all intensive purposes, it isn't viable for her.

Viability is an intellectually empty argument that ignores how that standard changes radically depending on time, location, and circumstances. In no other context do we allow human rights to be so volatile.

Um, how do you plan to prosecute for abortion in these post-septic shock days, then? If you plan to rely on the women in NRLC to report on doctors, they'll still have to prove that they did receive abortions from said doctors and that they had not provided a legally acceptable excuse for the abortion (given your reliance on the idea that volunteering for sex = volunteering for pregnancy, I assume that rape would be such an excuse?).

Okay, I was responding to your discussion about the 19th century, but I'll play along.

1) Same way you prosecute any other crime. Same way you prosecute for abortions which are performed after viability.

2) I'm ambivalent about a rape exception. I do think that consensual sex does automatically implicate consent for pregnancy, but I'm not wild about the idea of allowing innocent humans to be killed in a really brutal manner.

Most pro-lifers are against a rape exception, but realise that abortion laws cannot stand without them. From a purely pragmatic standpoint, I'm fine with it - I would rather outlaw elective abortions and be intellectually inconsistent than have abortion on demand.

----

The phrenologists found that 1/16 black people had different skulls than 100% white people?

Your sarcasm is unbecoming and makes you look foolish. I never did say that. You'll be a fine lawyer - bitch all the way through - but you aren't much for good-faith debate.

I believe I stated that they tried awfully hard. Never said they succeeded.

Oddly, I find the abortion debate to be incredibly foolish for that same reason. At least with racism or sexism, a white person can be reasonably sure of not being black, and a man can be certain of never forfeiting his privilege; however, we have all been fetuses. I no more approve of abortion than I approve of, say, mandatory national service for the young. The fact that I am not subject to the burdens of those policies - in fact, may only receive their benefit - is not a reason to endorse them.

I'm happy to say that abortion should be limited only to those who believe that their own mothers should have been able to abort them. Frankly, I'm sick of the women who free-ride on the right to abortion and look down on the other women who use that right.

Why? Perhaps it shows us that even women who abort feel as if their actions NEED justification - that, contrary to your belief that a fetus lacks the right to a mother's womb, it has such a right and abortion is a moral cesspool?

----

I don't think the fetus has a legal right to use an unwilling woman's body for life support any more than I have a legal right today to a single drop of blood from my mother's body if she is unwilling to give it. You are morally offended because I don't agree with your conception of legal rights.

No, just the method by which you seek to obtain vindication of those "legal rights."

I presume you know the methodology of abortion. No need to belabour the point about saline poisoning, dismembering fetuses, or suctioning them to pieces. It is enough to say that it is not an artificial womb, surrogate motherhood, or contraception: it is a medieval, barbaric practice that is completely out of sync with the ďrightĒ it supposedly vindicates.

It is not within the practice of medicine to end the life of a human being to vindicate the lifestyle choices of a patient.

Did you happen to catch todayís NYT Op-Ed section?
http://www.nytimes.com/2007/09/30/opinion/lweb30execute.html?ref=opinion

Oddly, some physicians believe that assisting with the death penalty is not part of the practice of medicine.

If your mother refuses a drop of blood to you now, you may die. However, you are not dying by her hand Ė by refusing you the blood, she (or her agent) is not actively inflicting upon you the most brutal of deaths. Likewise, should I refuse a kidney or part of my liver to a patient who needs it, he may die; however, that is radically different, legally, from me bludgeoning a person (dying or not). As an educated adult, you should be aware of the distinction between active and passive harm, and between errors of omission and errors of commission. The basic biological rule that can be deduced from that is we do not change biology when it causes harm to another person. We donít separate adult Siamese twins by the wish of one, against the consent of the other, when one will benefit and the other will suffer. Neither would we permit a former organ donor to retrieve his donated organ if he currently has need of it. In fact, even if he were to die, we would not allow the donor to forcibly take back his kidney, lung, or liver from the recipient.

------
If Faludi says otherwise (and I'd really like to get the page number, as I just tried the Amazon "search inside" feature on Backlash and didn't spot such a claim), she's recklessly wrong.

I donít have the book on me (itís in California, and Iím not). It would be on pages 400 onwards, IIRC.

FYI: I do not labour under the delusion that all American women get paid maternity leave. I am simply pointing out that the introduction of such ought to have reduced the abortion rate. You cite numbers such as 1.29 million and 1.36 million Ė a difference of 6%, which is hardly more than a blip on the radar screen.

Why use the CDC data? IIRC, they donít include California in the 1999 data onwards. Furthermore, they only obtain legal abortions Ė those which occur when someone evades parental notification laws or when the pregnancy was a result of statutory rape may be excluded. Finally, CDC collects data from a ďcentral health agency.Ē It assumes 100% compliance. Furthermore, there is some question about how states report data (i.e. whether on residents, nonresidents, or both).

The number, ratio, and rate of abortions from this analysis are conservative estimates because the numbers of legal abortions reported to CDC for 1996 were probably lower than the numbers actually performed. Totals provided by central health agencies might be lower than those obtained by direct surveys of abortion providers (3). For example, the total number of abortions reported to CDC for 1996 was approximately 12% lower than that reported for 1996 by The Alan Guttmacher Institute, a private organization that directly contacts abortion providers to obtain information concerning the total number of abortions performed (13). In addition, not all states collected and/or reported information (e.g., age, race, and gestational age) concerning women obtaining a legal induced abortion in 1996; therefore, the numbers, percentages, rates, and ratios derived from this analysis might not be representative of all women who obtained abortions in that year.


Can you cite to a medical board's decision that giving a C-section in this situation is reason to revoke a physician's license?

Did I say that a physicianís license would be revoked? PG, get with the programme. You think that physicians would perform the C-section if asked; I think that the woman would most likely be turned down. Consider that physicians may not provide unnecessary services (and inducing labour or providing a non-medically necessary C-section is probably ďunnecessaryĒ):
http://www.ama-assn.org/apps/pf_new/pf_online?f_n=browse&doc=policyfiles/HnE/E-2.19.HTM&&s_t=&st_p=&nth=1&prev_pol=policyfiles/HnE/E-1.02.HTM&nxt_pol=policyfiles/HnE/E-2.01.HTM&

So yes, a woman could ask for one, but good luck finding a doctor who will so provide.

I don't want to be pregnant and I've come to this hospital because you can keep this fetus alive. Either give me a C-section to relieve me of the burden of pregnancy, or I'm going to relieve myself of it." (In your preferred world where she could self-abort legally, she doesn't have to worry that declaring the intent to kill the fetus will result in her prosecution.)

Fred Thompson stated that he would not want to prosecute a woman who sought an abortion during her first trimester. Obviously, Iím also concerned about potential abortive issues (or quasi-abortive issues) that arise near labour and delivery (i.e. the ability of physicians to force a woman into C-section delivery)

Incidentally, hereís some information (from a source that makes my stomach turn, but thatís another topic) about the effect of premature delivery upon viable fetuses:
http://www.secularhumanism.org/index.php?section=library&page=singer_27_4

Now, you might see my off-hand comment about my sister to be ďproofĒ of such matters; however, I had simply assumed that you, with your wonderful physician family, were well aware that babies who are born prematurely do not have the same outcomes as those born after full gestation; and, as such, an anecdote about the problems that infants in neonatal wards face would only underscore that point. I did not realise, however, that you are blissfully unaware of the fact that babies born at 30 weeks do not sail through a neonatal ward onto a bright future, unencumbered by harms associated with premature delivery. You do learn something every day.

There is no moral right to safely commit murder.
But in your world, there is a legal right to unsafely commit it. OK
Foolish me. I presumed that, after a few years of law school, you were aware of the distinction between moral, legal, and policy-oriented arguments. It is especially odd, considering that youíve been arguing for the legal right to commit morally ambiguous (at best) acts.
If you want to disprove something about the 1960s, cite a source that actually talks about the 1960s, not the Guttmacher Institute's research about post-Roe abortions.
This is like debating a hummingbird on crack. You brought up the 1960s in relation to economic issues; your point was that we should implement socialistic-style policies because pre-Roe studies show that married women abort more than unmarried women.
Iím pointing out that your studies, from the 1960s, are irrelevant for today. Iím not trying to disprove (or even prove) anything about the 1960s; Iím merely pointing out that it is utterly irrelevant to 2007. Context, PG.

Posted by: theobromophile at September 30, 2007 10:19 PM

Interestingly, you criticise me for using family examples and not providing legal arguments. Yet, your arguments to date are:
1) You have a lot of doctors in your family, so you are enlightened and, moreover, don't want them going to jail;
2) doctors have no duty to the fetus (no authority, moral or legal, for this); and
3) if a woman is going to perform an abortion on herself, the doctors are unable to resist helping her with law-breaking, so it would be mean to make them go to jail.
4) Oh, for some reason, if women can be punished by doctors cannot be punished, there is more incentive to tattle... and we should always make our laws based on likelihood of tattling, not outdated notions of moral culpability.
5) It's legislating morality!! The sky is falling! You make no attempt to distinguish between valid exercises of morality (i.e. the criminalisation of murder, rape, assault, embezzlement, and, sometimes, breach of fiduciary duty) v. invalid exercises thereof (i.e. prostitution). As it stands now, I've at least explained why abortion is in the former category and not the latter. You just ignore that and say that I'm incapable of making legal arguments.

Hypocrite much? I mean, really - would it kill you to find a statistic? Make a legal argument? Figure out the 19th century abortion laws, instead of making false accusations and throwing an e-tantrum when you don't like my sources? Or do pro-life women freak you out so much that you just can't deal?

Posted by: theobromophile at October 1, 2007 01:16 PM
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